Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 What Subjects Arrestable.

Galbraith
v.
Lennox of Blairshogel

Date: 28 June 1637
Case No. No 37.

In opposition to No 29. p. 696; A sum destined to heirs, and to be employed on land, found arrestable after the term of payment.

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By contract of marriage betwixt Andrew Galbraith and Janet Lennox, his future spouse, John Lennox of Blairshogel, father to the said Janet, is obliged to pay in tocher, the sum of money to the said Andrew Galbraith, to be employed upon land by the said Andrew, to the behoof of himself in liferent, and and his spouse, and the longest liver of them two, and the heirs to be gotten betwixt them; which failing, the one half to pertain to John Lennox, younger of Blairshogel; which sum being arrested by Mr John Galbraith, minister, for satisfying of a debt owing to him by the said Andrew Galbraith, and upon the arrestment, having obtained sentence before the Sheriff of Striviling, against Blairshogel, as holden as confest: Which decreet being suspended upon this reason, that the sum was owing by contract of marriage foresaid, and was destined to be employed upon land, as is before related; in respect of which destination, the sum was heritable, and so not subject to arrestment: And also he alleged, That seeing he had conditioned these sums in favours of his daughter, for her lifetime and her husband's, and to their heirs, with provision in case of failzie of heirs betwixt them, that eo casu the equal half thereof should return to his son, in respect he was obliged to pay these sums only with these provisions; and, in that manner, therefore, with no reason can he be compelled to pay the same to any use, other-wise than to that use whereto he had provided and obliged himself particularly, and so ought not to be paid or made furthcoming, for satisfying the debt owing by his son-in-law to his creditor, contrary to the mind of the contract, and provisions of the parties: And the creditor compearing and opponing his decreet recovered against him, and alleging this sum to be arrestable:—The Lords, notwithstanding of the destination foresaid, contained in the contract of marriage, found the sum was arrestable; but declared that the creditor, who had obtained sentence therefor, to make the same furthcoming, ought to fulfil the conditions with which the money was affected by the said contract of marriage; and that the money ought to be paid to him, he finding caution to make the same furthcoming to the relict, in case she survive her husband; and to the heirs gotten betwixt them, in manner as the contract proports: And found, That he ought not to have the said sum paid to him, except upon finding caution, as said is; and found it not competent in this place to dispute, if the sum might be evicted for the husband's debt, and thereby the bairns (if any were gotten in the marriage) prejudged of the fee of the money, or the person substitute, if there were no heirs in the marriage; but referred that in its own time to be considered, when the case should fall out; and, in the mean time, the husband living, who was provided to this liferent, at least of the money, it was found that the creditor, during his lifetime, ought to have the use of the money, he finding caution ut supra; for the arrester's debt being far less than the sum arrested, the profit thereof might pay him before his debitor died, and so the doubt anent the heirs could not occur. (See Fiar Absolute and Limited. See Mutual Contract.)

Clerk, Gibson. Fol. Dic. v. 1. p. 55. Durie, p. 846.